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Budget 2018: transcript of doorstop interview: Parliament House, Canberra: 9 May 2018: High Court decision

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SUBJECT/S: High Court decision; Budget.

BILL SHORTEN, LEADER OF THE OPPOSITION: Good afternoon everybody. I’ll just make a few brief remarks about the High Court's decision of a couple of hours ago. The High Court has set a new precedent for the eligibility of candidates to nominate and still be constitutionally acceptable under Section 44. In good faith, our candidates and the Labor Party and I have relied on advice that's been the same advice for over 20 years. But the High Court has looked at the facts in Senator Gallagher's matter, they have developed a new test, a stricter test, a new precedent, and we accept that. What I am pleased to also announce today is that all three candidates, members who have fallen into the Section 44 problems which have taken many other people, they have all agreed to renominate, so at these by-elections which weren't sought, it's an early opportunity for Australians to cast their view on Mr Turnbull's proposal to give $17 billion to the big banks. I might just ask Tony Burke to talk a little bit about the practical arrangements.

TONY BURKE, MANAGER OF OPPOSITION BUSINESS: Just quickly on some of the details. I’ve met with the Speaker and have explained to the Speaker the situation, particularly for the members wanting to make sure, as good local members, that they don't want any of the constituent matters they have been dealing with to be disadvantaged in any way. They won't be returning to the House of Representatives until after they come back from the by-elections. And they will be spending the next couple of days finalising different constituent matters that they have to deal with, the resignations themselves will take effect on Friday. And I understand that Tim Hammond's resignation will be received on the same day.

JOURNALIST: Mr Shorten, on many, many occasions, you ensured the Australian people your vetting processes were ironclad, watertight, no cloud over the head of any of your members. Just how much of a goose do you feel today?

SHORTEN: At all times the Labor Party has act in good faith. I have relied upon the legal advice provided to me by the Labor Party, the same advice I might say provided to Labor leaders since the mid-1990s. I must stress that our quality candidates have relied on this advice. So after 20 years of believing the law goes one way and after asking all candidates to comply with the processes that we thought were appropriate, the High Court has set a stricter test. Legal experts such as Professor George Williams has said, quite frankly, they are surprised by this decision. The Australian Electoral Commission hand book for prospective candidates spells out that candidates, if they're a dual national, have to take all reasonable steps. But the High Court has made its decision, these are the facts we've got to deal with, and that's why all three of these quality candidates will be recontesting at the earliest possible date, and this provides, I must say, although this wasn't the plan, it provides an early opportunity for Australians to pass a view about giving away $80 billion to big business, of which $17 billion alone goes to -

JOURNALIST: Are you apologising at all today for those assurances?

SHORTEN: We have acted in good faith at all times.

JOURNALIST: You mislead the people in good faith?

SHORTEN: No, we followed the legal advice we have been given. Legal experts said this decision is one which surprised them. And I have to also make the point that Senator Reynolds from the Government has made it clear that Section 44 does need to be reviewed and of course, we've seen that Section 44 has caused a lot of unforeseen and unexpected outcomes.

JOURNALIST: You said all three of the members that have now resigned will recontest their seats. One of the key reasons why Susan Lamb was brought into this is that she said she was unable to renounce her British citizenship. She couldn’t get the relevant paperwork. Has she now renounced her British citizenship?

SHORTEN: I'm sure that she will be eligible to run under the new test by the time at the close of nominations.

JOURNALIST: Has she now renounced her dual citizenship?

SHORTEN: At the time of close of nominations, she will have followed this new test that we found out about three hours ago.

JOURNALIST: Have you asked her to renounce her citizenship?

SHORTEN: She's going to renounce her citizenship.

JOURNALIST: So she hasn't yet?

SHORTEN: I’ve said she will be eligible to run at the close of nominations.

JOURNALIST: Will you commit to release all your legal advice and instructions to assure the Australian public that Labor didn't run a protection racket for these MPs and that it really was the best advice you had that they were all in compliance?

SHORTEN: It will be up to the political party to release its legal advice. But it’s very clear and a lot of experts have said similar things to what we have said. The Labor Party has relied on an interpretation of a 1992 High Court case and today the High Court, in our opinion and the opinion of other experts, has significantly tightened the restrictions. Whether or not I like it does not matter. It's now the law and that's the one we're going to follow.

JOURNALIST: Several members of the Coalition who were struck out by the High Court also had legal advice saying they would be OK, Barnaby Joyce, Fiona Nash - but they still chose to test that before the High Court last year. Do you now regret not doing the same, joining that job-lot that Malcolm Turnbull offered you last year to clear this up and clear the image of this parliament?

SHORTEN: There is a clear distinction: our candidates, with the exceptions as it turns out of not being able to prove it, Mr Feeney, have all taken reasonable steps which they thought were reasonable -

JOURNALIST: No they haven't, the -

SHORTEN: Just hang on, I'll take a question one at a time. I am answering Phil's now -

JOURNALIST: The High Court -

SHORTEN: Phil, in answer to your question. They took all reasonable steps that were within their power. It's now said that it's a stricter test. And so, that is the law as it is now.

JOURNALIST: Paragraph 38 of the judgement actually said that there's nothing that was presented in Senator Gallagher's case that would force a departure from the judgement that was handed down in the original seven cases last year. So how are you saying that this is a new test?

SHORTEN: That is what our lawyers are saying to us, this wasn't the outcome -

Hang on, Mark.

JOURNALIST: (Inaudible) nothing different to what was handed down last year.

JOURNALIST: You're blaming your lawyers. You're standing behind the lawyers. Haven't you got the guts to say, I'm sorry, I got it wrong?

SHORTEN: Well actually, if you get your lawyers, you do take their advice. And in this case, our lawyers were clear. It's been the same advice for 20 years. Let's be -

JOURNALIST: Will you release that advice?

SHORTEN: Let's just perhaps take the four questions one at a time. And you'll get four answers.

JOURNALIST: Who are your lawyers?

SHORTEN: They're the Party's lawyers.

JOURNALIST: Are you going to release that or are we supposed to take it on trust?


JOURNALIST: You're not going to release it?

SHORTEN: Political parties don't release all their legal advice.

JOURNALIST: After the original decision then last year, did you not, as a Party, go back to your lawyers, question that 20 year old advice as to whether it was now current given the decision?

SHORTEN: Yes, we did.

JOURNALIST: What did they say?

SHORTEN: They said that our position was sound.

JOURNALIST: (Inaudible) Susan Lamb didn't renounce - as soon as she found out. So, she could have gone to the Queensland Births, Deaths and Marriages and explained her personal situation, which is obviously estranged from her mother. Why on earth would she wait this long to actually get that in order?

SHORTEN: First of all, Susan Lamb explained her family background, and she gave a statement in Parliament which I thought was compelling in its sincerity and its honesty.

In terms of getting the documentation, there were avenues which she said then, she didn't think she could access and we are going to do what has to be done now.

JOURNALIST: From that very moment, from she got up in court and she did explain her personal circumstances -

SHORTEN: In Parliament I think it was.

JOURNALIST: Which was very sad. It was explained she could actually access that material without her mother's assistance through a special application in the Queensland Births, Deaths and Marriages. Why did she do that not back then? Doesn't that put her at risk of not actually being able to potentially stand in the by-election?

SHORTEN: I'm confident, now that we've seen this decision that Susan will be eligible to nominate for Parliament in the very near future.

JOURNALIST: (Inaudible) Ms Lamb though - the Court has obviously found that the British processes - you're at the whim of the British processes, and that's OK under this ruling. What happens if the British, sorry, if the British Home Office does not process her renunciation in time before nominations close?

SHORTEN: Well, as we saw with more recent Coalition members, it would appear that British authorities are speeding up their responsiveness to resolving these citizenship matters. But I will just ask Tony to add.

BURKE: Just on that if I may quickly, since this issue has blown up even in the last few months, if you look at Fiona Nash, when that happened the renunciation took place in about three days. So the processes that are happening now from the British Home Office are quite different.

And for the reference that was made earlier about the previous High Court decision last year, as to why we didn't have a response from that - that didn't test reasonable steps because the people who were before the court then were people who had taken no steps to renounce. This is the case where we actually have reasonable steps being tested and when you say, oh, what about the legal advice - can I just say, the Australian Electoral Commission had the same conclusion as the Australian Labor Party and kept that in the candidates’ hand book, even as recently as the Batman by-election.

JOURNALIST: On Susan Lamb, are you taking a punt on Susan Lamb based on an assurance you're getting from the Brits that they will process it quickly, and isn't that a very big risk given it hasn't worked in the past?

SHORTEN: The British High Commission I have no doubt now will realise that they have to process these matters for candidates a lot quicker than they have done historically. But as for a punt on Susan - let me answer this question, Sam. As for taking a punt on Susan Lamb, if she gets elected in Longman; she's going to vote against the corporate tax giveaway of the Turnbull Government, and she's going to vote to make

sure that pensioners get a better deal, she's going to vote for betters schools and hospitals, she's on the side of the angels when it comes to the policies in this budget.

JOURNALIST: She doesn't have that documentation? Does she have that documentation from Births, Deaths and Marriages or not?

SHORTEN: I'm not aware of each piece of paper that she has but I am more than confident that as we read this new decision she will be eligible to nominate.

JOURNALIST: Mr Shorten, you knew you had at least one dual citizen still in the Parliament for months now. you’re the leader of the Party, it's your responsibility to make sure all of your team are eligible. You knew she was a dual citizen, why didn't you do anything about it?

SHORTEN: Because the test that we understood to be the case is you've got to take all reasonable steps.

JOURNALIST: But she was still a dual citizen.

SHORTEN: Just hang on. You've asked me and I'm giving you the answer, you mightn't like the answer but it's the answer. We relied on our legal advice which says all reasonable steps and what the High Court has said is that all reasonable steps has to include the bureaucratic processing systems of a foreign Government. That hasn't been the advice we've received, whether or not we like what the High Court has decided they've made that decision and we're going to get on with it because Australians want to get on with debating what is the right sort of budget for the country.

JOURNALIST: Mr Shorten you said the by-elections you want to make them about the company tax cuts. If you lose one or more of the seats are you going to pass the tax cuts?

SHORTEN: They're still a bad idea but we think that Australians will reflect. I mean really Phil I don't know, get out and about. How many people come up to you and say they want to see large banks get a tax cut rather than see their school properly funded or their hospital properly funded.

This is an early opportunity, it's not one which we sought but we will take this opportunity to ask Australians and to explain to them that this hoax of a budget, passed last night - or presented last night, which is all about giving large corporations billions of dollars in taxpayer money which means that's less money for schools, hospitals, debt and indeed income tax relief for lower paid Australians.

JOURNALIST: Your position has raised some questions over the citizenship status of a number of Liberal MPs. What should happen to them now? Are you satisfied with their status or should they be referred?

SHORTEN: Good question, I'll let Tony Answer.

BURKE: As you'd know last year, I did move for all of these cases to be referred to the High Court, for all the ones where there could be considered any level of grey. The reason this court case doesn't change anything for the Liberals involved is because they are all people that took absolutely no steps. Absolutely no steps. So the reasonable steps test never helped them. There is still a cloud over their citizenship. The right thing for them to do, and this is all based on what they have made public and what they left in doubt, with Jason Falinski probably being the one where the evidence appears strongest based on entry in 1958 and Polish passports back then. We're not saying he should leave the Parliament tomorrow, but that one should be referred to the High Court.

SHORTEN: I'm just conscious that we've got Question Time so maybe a couple of questions from people who haven't spoken and then - I don't think Chris has had a go yet.

JOURNALIST: You keep referring to this as a new test, in fact this section of the Constitution on reasonable steps was referenced in last year’s judgment. We had that same conversation out here. The Shadow Attorney-General lectured us on that particular part of the judgment so this is not a new test, this test was put in place last year it's just been clarified.

SHORTEN: Okay is there a question in there? Seriously Chris -

JOURNALIST: How can you refer to this as a new test when you last year told us that you were referencing this section when you were referring to reasonable steps. How can you tell us this is a new test?

BURKE: Sorry Chris you are referring to a judgment that wasn't testing the reasonable steps test -

JOURNALIST: It's in the judgment.

BURKE: No, no - none of those cases were people who were relying on the reasonable steps test. This is the first time we've had it and when the decision came down, we've acted within a couple of hours.

JOURNALIST: Mr Shorten, you want this to be a referendum on company tax cuts, the Prime Minister wants this to be a referendum on leadership. Have you passed the leadership test in your handling of this?

SHORTEN: Our leadership is evidenced by the fact that we're going to put working and middle-class people first in our budget reply tomorrow night. Leadership in this country involves focusing on what affects the lives of everyday Australians. More funding for hospitals, more funding for schools, more funding for TAFE, not giving away

$80 billion in corporate tax cuts. That's what leadership is about, it's about what affects people around the family table of an evening.

We know cost of living - there was nothing in the budget last night for that. They were offering millions of taxpayers $5 or $10 yet they're offering the Commonwealth Bank $7.5 million every week.

Thanks everybody, I'll see you in Question Time.



Authorised by Noah Carroll ALP Canberra